Nikonov v. Flirt Ny Inc.
- Stewart Aaron
- 1:19-cv-07128
- U.S. District Court · Southern District of New York
- 3
In Nikonov v. Flirt NY, Judge Aaron denied defendants’ request to subpoena four former employers after discovery closed.
The order affected the defendants’ request to obtain employment records from Nikonov’s four former employers and Nikonov’s opposition to that request.
What happened
In Nikonov v. Flirt NY, Inc., Denys Nikonov sued his former employer and other defendants over unpaid wages, missing wage information, and disability discrimination. The defendants asked to subpoena employment records from four of Nikonov’s former employers.
The discovery deadline was September 30, 2020, but the defendants did not seek an extension. They said Nikonov’s deposition on September 29 led to the subpoena requests, but they waited about eight months before seeking permission to issue them. Nikonov opposed the request.
Judge Stewart D. Aaron denied the defendants’ letter motion. The court found no good cause for missing the discovery deadline and said the subpoenas were also too broad because they sought all employment records and were not proportional to the needs of the case.
The detailed version
- Nikonov v. Flirt Ny Inc. · No. 1:19-cv-07128
- Stewart Aaron
- June 4, 2021
Background
Denys Nikonov brought claims against Flirt NY, Inc., doing business as Flirt Beauty Boutique, Violeta Chulpayev, and Ariel Chulpayev. His claims included alleged failures to pay minimum wages, overtime, and a spread-of-hours premium under the Fair Labor Standards Act and New York Labor Law; alleged failures to provide wage notices and statements under New York Labor Law; and disability-discrimination claims under New York State and New York City human-rights laws.
The court’s April 30, 2020 case-management plan set September 30, 2020, as the deadline for completing fact discovery. The defendants did not seek an extension. They later asked for permission to serve document subpoenas on four former employers of Nikonov: Bon Bon Salon, Matti Hair Salon, Sophistique Beauty Salon, and Eksprovocator Hair Club. Each subpoena sought “all records of employment of plaintiff.” Nikonov opposed the request.
Court’s Analysis
Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be changed only for good cause and with the judge’s consent. The party seeking the change bears the burden of showing good cause, with the analysis focusing primarily on that party’s diligence and the reasons for the requested change.
Judge Aaron found that the defendants had not shown good cause for failing to serve the subpoenas before the discovery deadline. The defendants stated that they learned of the need for the subpoenas during Nikonov’s September 29, 2020 deposition. But they offered no explanation for waiting another eight months before seeking permission to serve them. The court also noted that Nikonov had identified three of the former employers in interrogatory responses dated June 30, 2020, and that the defendants did not identify specific deposition testimony supporting their explanation.
The court further held that, to the extent the defendants treated the subpoenas as trial subpoenas, they were not properly served for that purpose. Trial subpoenas may be appropriate for matters such as obtaining an original document previously disclosed during discovery, refreshing memory, or preparing for trial. They are not a substitute for discovery requests issued after the discovery deadline when the party already knew the documents existed. As an independent reason, the court found the subpoenas disproportionate because requests for “all records” of Nikonov’s employment were an overly broad fishing expedition.
Disposition
Judge Aaron denied the defendants’ letter motion seeking permission to issue the four subpoenas.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.